Pardee, J.
The defendant contends that this action is trespass quare clausum fregit; that possession by the plaintiff at the time of the injury is a pre-requisite to the maintenance of that action; and that this plaintiff was barred from possession during the entire time of occupancy by the defendant, and that therefore she must fail in her suit.
But, while in form this is an action of trespass, being consequent upon and supplemental to the action of ejectment, and therefore necessarily partaking of its characteristics, in effect it is to recover the rents and profits of the estate, and although the right to institute it was in suspense until the plaintiff had regained actual possession, the law then supposes the freehold to have been continuously in the rightful owner by a kind of jus joostliminii, and gives her the action for the damages or mesne profits during the time of tortious dispossession; thus avoiding the application of the rule cited by the defendant and attaining justice through a fiction.
It was within the power of the plaintiff to include mesne profits in the judgment in the action of ejectment; and it was equally within her power to take only nominal damages for the trespass, enter a remittitur, and institute an action against the defendant for such part of the profits accruing during the time of. the disseisin as he actually took to himself.
. This action rests upon the plain principle that he who occupies the land of another shall compensate the owner therefor, even if he occupied by virtue of a lease from, and paid rent to, one who was apparently in possession claiming title, and whom he in good faith, but mistakenly, believed to be the rightful owner. Eor, as between two persons, equally without fault, each should bear the loss or risk of loss resulting from his own mistake.
[356]*356This principle had judicial recognition at least as early as Holcomb v. Rawlins, Cro. Eliz., 540, determined about 1596. That was trespass quare clausum fregit; the defendant pleaded “ that, long before, Thomas Clerk was seised in fee and let to him for years, and gives color to the plaintiff; the latter replied that he was seised until by the said Thomas Clerk disseised, who let to the defendant; that the plaintiff afterwards re-entered and the trespass mesne betwixt.” • The defendant demurred; judgment for the plaintiff; the court saying that by his re-entry “ he is remitted to his first possession, and as if he had never been out of possession; and then all who occupied in the meantime, by what title soever they come in, shall answer unto him for their time; as if a disseisor had been disseised by another, the first disseisee re-enters, he shall in trespass punish the last disseisor; for otherwise it would be mischievous unto him, for after his re-entry he shall have no remedy for his mesne profits. And it is not to be doubted but that the disseisee after his re-entry shall punish the second disseisor -and the servant of the first disseisor who occupied under his master; which was not denied by any; and by the same reason he shall punish him who comes in by title, for that is now as a trespass done unto himself.”
Doe v. Whitcomb, 8 Bingham, 46,decided in 1831, was trespass for mesne profits. There was a judgment in ejectment against Simon Payne; the plaintiff had seisin by execution; the defendant had occupied the premises for a year, having been let into possession by an agent of Payne, to whom he had paid the rent. It was objected that the defendant was not thereby sufficiently connected with Payne to render him liable to this action for mesne profits. The verdict was taken for the plaintiff, with leave for the defendant to move the court on the point. Tindal, G. J. “We entertain no doubt on the case. The evidence was, a judgment in ejectment against Simon Payne; the execution of a writ of possession thereon; that the defendant came in under Simon Payne and had possession for a certain time, and paid rent to a certain amount. The only objection to the verdict is, that the [357]*357defendant is a stranger to tlie record in ejectment against Payne. The answer is, that the defendant came in under Payne while the judgment in ejectment was pending, and that he cannot hold by a better title than Payne.”
Emerson v. Thomson et al., 2 Pick., 473, was trespass for mesne profits. The plaintiff having recovered judgment against the administrators de bonis non of the estate of John Harris, deceased, upon March 30th, 1818, levied his execution upon certain land, and immediately made a lease thereof to Brown, who was already in possession as a purchaser from the administrators. Befoi-e the levy of the plaintiff’s execution W. Thompson, the father of the defendants, had recovered judgment for the premises in a writ of entry sur disseisin against Brown, and on May 8th,-1818, he executed his habere facias seisinam and expelled Brown, then in possession under the plaintiff’s lease. W. Thompson died November 16th, 1818; the defendants were his heirs at law and administrators upon his estate. On May 20th, 1819, in his latter capacity, W. Thompson, the defendant, leased the premises for one year; and it did not appear that he or any other of the defendants had at any time before entered thereon after the death of their ancestor. On May 21st, 1819, the plaintiff brought his writ of ejectment demandingseisin of, &c., “into which the said defendants have not entry but by W. T., &c., deceased, who thereof unjustly disseised the plaintiff, and from whom the same descended to the defendants, who still unjustly withhold the same,” &c.; plea “that they never disseised in manner and form.” Verdict of judgment for the plaintiff, with writ of seisin duly executed. Held—“ that the heirs were liable in trespass for the mesne profits accruing after the commencement of the writ of entry, (and so, it seems, they would have been, if they had been purchasers,) but not for those accruing- between the descent cast and their entry. As to those accruing between their entry and the commencement of the writ of entry; Qucere.”
In Green v. Biddle, 8 Wheaton, 1, it is said that “ nothing in short can be more clear upon principles of law and reason, [358]*358than that a law which denies to the owner of land a remedy to recover the possession of it when withheld by any person, however innocently he may have obtained it, or to recover the profits received from it by the occupant; or which clogs his recovery of such possession and profits by conditions and restrictions tending to diminish the value and amount of the thing, recovered, impairs his right to and interest in the property.” In Storch v. Carr, 28 Penn. St. R., 135, it is said that “intermeddling with real estate by putting a party in possession and afterwards making a written lease of it to other parties, makes the parties so interfering liable with the parties occupying the premises for mesne profits.” In Bradley v. McDaniel, 3 Jones’s N. Car. Law R., 128, it is said that “ one coming in as lessee to the defendant in an action of ejectment during the pendency of ihat action, is bound by the proceedings had therein, and consequently is liable to an action for mesne profits.” In Judson v. Stone, 13 Johns., 448, it was held “that when during the pendency of an action of ejectment the defendant gives up the possession to a third person, 'and afterwards the plaintiff recovers judgment, such third person is liable for the mesne profits,” and in
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Pardee, J.
The defendant contends that this action is trespass quare clausum fregit; that possession by the plaintiff at the time of the injury is a pre-requisite to the maintenance of that action; and that this plaintiff was barred from possession during the entire time of occupancy by the defendant, and that therefore she must fail in her suit.
But, while in form this is an action of trespass, being consequent upon and supplemental to the action of ejectment, and therefore necessarily partaking of its characteristics, in effect it is to recover the rents and profits of the estate, and although the right to institute it was in suspense until the plaintiff had regained actual possession, the law then supposes the freehold to have been continuously in the rightful owner by a kind of jus joostliminii, and gives her the action for the damages or mesne profits during the time of tortious dispossession; thus avoiding the application of the rule cited by the defendant and attaining justice through a fiction.
It was within the power of the plaintiff to include mesne profits in the judgment in the action of ejectment; and it was equally within her power to take only nominal damages for the trespass, enter a remittitur, and institute an action against the defendant for such part of the profits accruing during the time of. the disseisin as he actually took to himself.
. This action rests upon the plain principle that he who occupies the land of another shall compensate the owner therefor, even if he occupied by virtue of a lease from, and paid rent to, one who was apparently in possession claiming title, and whom he in good faith, but mistakenly, believed to be the rightful owner. Eor, as between two persons, equally without fault, each should bear the loss or risk of loss resulting from his own mistake.
[356]*356This principle had judicial recognition at least as early as Holcomb v. Rawlins, Cro. Eliz., 540, determined about 1596. That was trespass quare clausum fregit; the defendant pleaded “ that, long before, Thomas Clerk was seised in fee and let to him for years, and gives color to the plaintiff; the latter replied that he was seised until by the said Thomas Clerk disseised, who let to the defendant; that the plaintiff afterwards re-entered and the trespass mesne betwixt.” • The defendant demurred; judgment for the plaintiff; the court saying that by his re-entry “ he is remitted to his first possession, and as if he had never been out of possession; and then all who occupied in the meantime, by what title soever they come in, shall answer unto him for their time; as if a disseisor had been disseised by another, the first disseisee re-enters, he shall in trespass punish the last disseisor; for otherwise it would be mischievous unto him, for after his re-entry he shall have no remedy for his mesne profits. And it is not to be doubted but that the disseisee after his re-entry shall punish the second disseisor -and the servant of the first disseisor who occupied under his master; which was not denied by any; and by the same reason he shall punish him who comes in by title, for that is now as a trespass done unto himself.”
Doe v. Whitcomb, 8 Bingham, 46,decided in 1831, was trespass for mesne profits. There was a judgment in ejectment against Simon Payne; the plaintiff had seisin by execution; the defendant had occupied the premises for a year, having been let into possession by an agent of Payne, to whom he had paid the rent. It was objected that the defendant was not thereby sufficiently connected with Payne to render him liable to this action for mesne profits. The verdict was taken for the plaintiff, with leave for the defendant to move the court on the point. Tindal, G. J. “We entertain no doubt on the case. The evidence was, a judgment in ejectment against Simon Payne; the execution of a writ of possession thereon; that the defendant came in under Simon Payne and had possession for a certain time, and paid rent to a certain amount. The only objection to the verdict is, that the [357]*357defendant is a stranger to tlie record in ejectment against Payne. The answer is, that the defendant came in under Payne while the judgment in ejectment was pending, and that he cannot hold by a better title than Payne.”
Emerson v. Thomson et al., 2 Pick., 473, was trespass for mesne profits. The plaintiff having recovered judgment against the administrators de bonis non of the estate of John Harris, deceased, upon March 30th, 1818, levied his execution upon certain land, and immediately made a lease thereof to Brown, who was already in possession as a purchaser from the administrators. Befoi-e the levy of the plaintiff’s execution W. Thompson, the father of the defendants, had recovered judgment for the premises in a writ of entry sur disseisin against Brown, and on May 8th,-1818, he executed his habere facias seisinam and expelled Brown, then in possession under the plaintiff’s lease. W. Thompson died November 16th, 1818; the defendants were his heirs at law and administrators upon his estate. On May 20th, 1819, in his latter capacity, W. Thompson, the defendant, leased the premises for one year; and it did not appear that he or any other of the defendants had at any time before entered thereon after the death of their ancestor. On May 21st, 1819, the plaintiff brought his writ of ejectment demandingseisin of, &c., “into which the said defendants have not entry but by W. T., &c., deceased, who thereof unjustly disseised the plaintiff, and from whom the same descended to the defendants, who still unjustly withhold the same,” &c.; plea “that they never disseised in manner and form.” Verdict of judgment for the plaintiff, with writ of seisin duly executed. Held—“ that the heirs were liable in trespass for the mesne profits accruing after the commencement of the writ of entry, (and so, it seems, they would have been, if they had been purchasers,) but not for those accruing- between the descent cast and their entry. As to those accruing between their entry and the commencement of the writ of entry; Qucere.”
In Green v. Biddle, 8 Wheaton, 1, it is said that “ nothing in short can be more clear upon principles of law and reason, [358]*358than that a law which denies to the owner of land a remedy to recover the possession of it when withheld by any person, however innocently he may have obtained it, or to recover the profits received from it by the occupant; or which clogs his recovery of such possession and profits by conditions and restrictions tending to diminish the value and amount of the thing, recovered, impairs his right to and interest in the property.” In Storch v. Carr, 28 Penn. St. R., 135, it is said that “intermeddling with real estate by putting a party in possession and afterwards making a written lease of it to other parties, makes the parties so interfering liable with the parties occupying the premises for mesne profits.” In Bradley v. McDaniel, 3 Jones’s N. Car. Law R., 128, it is said that “ one coming in as lessee to the defendant in an action of ejectment during the pendency of ihat action, is bound by the proceedings had therein, and consequently is liable to an action for mesne profits.” In Judson v. Stone, 13 Johns., 448, it was held “that when during the pendency of an action of ejectment the defendant gives up the possession to a third person, 'and afterwards the plaintiff recovers judgment, such third person is liable for the mesne profits,” and in Morgan v. Varick, 8 Wend., 587, “that a disseisee, after recovering possession, may maintain trespass for mesne profits against the disseisor, or his servants, or a stranger acquiring title from the disseisor.”
It is true that the principle has not had the unanimous support of courts in England or this country. In Liford’s case, 11 Coke, 51, (1615,) there is a dictum of Lord Coke, C. J., to the effect that the disseisee after re-entry cannot recover in an action for mesne profits against the feoffee or lessee, or disseisor of the first disseisor, giving as reasons that “this fiction of the law, that the freehold continued always in the disseisee, shall not have relation to make him who comes in by title a wrong-doer vi et armis/C that “it is to be presumed that the feoffee has given consideration or recompense to the disseisor, and that the lessee has paid rent to him, or other consideration, and therefore in reason the disseisor is to be charged with the whole;” and in respect to [359]*359the disseisor of the disseisor that the “fiction of law as to the action extends only to the first disseisor, and if the disseisee should punish the second disseisor he would be twice charged.” Lord Qohe refers to several ancient cases in support of his opinion, acknowledging that “ there was a great variety of opinions in the books ” upon the point. See Symons v. Symons, Hetley, 66; Viner’s Abr., Trespass, R. 4, pl. 5; Bro. Abr., Trespass, pl. 35; Keilway, 1, pl. 2; see also Sanderson v. Price, 1 Zabriskie, 637. In 2 Rol. Abr., 554, Trespass per relation, the law is declared to be as laid down in Holcomb v. Rawlyns, supra, in Gilbert’s Tenures, 47, 50, and in Comyn’s Digest, Trespass, B. 2. Buller in his Nisi Prius, 87, speaking of the doctrine of IAford’s case, says “ it may admit of doubt, for there are cases to the contrary, and the reason of the law seems to be with them.” In Emerson v. Thompson, supra, Wilde, J., says:—“ So far therefore from feeling myself bound by IAford’s case as an authority, I am of opinion that the weight of authority is opposed to the decision in that case; and that this is the opinion also of the English courts may be inferred from their well known practice in relation to the action for mesne profits consequent to a recovery in ejectment.”
The record finds that in the month of July, 1874, the defendant had actual knowledge that there was litigation between Georgia Y. Alden and- the plaintiff as to the title to, and right to the possession of, the premises, and it is not found that he had previously paid any portion of the rent reserved for the term. Having taken no precautions against the results of a possible judicial determination that the person under whom he held had no title to the premises, and no right of possession thereof, and could confer none upon him he is not now to be heard to complain that he has paid rent to her. Upon knowledge it was for him to be diligent in enquiry as to his rights and duties, and in protecting himself against double payment. It was not his privilege simply to pay, and then transfer all risk of loss from himself to the plaintiff.
It is not an answer to her demand that he has come under [360]*360an obligation from which he cannot relieve himself to pay rent to the disseisor; that was his voluntary act and his misfortune. Neither in law nor equity are the rights of the plaintiff, she being without fault, to be conclusively determined thereby.
Moreover, the plaintiff had placed upon record a duly executed deed of the premises to herself. From the date of such record the defendant had constructive notice as to the state of the title; from that date the plaintiff was entitled to the protection given, and the defendant was subject to the limitations imposed ’thereby. His payment of rent to a disseisor was without excuse or any element of equity; it has not ignorance for its justification.
But we do not think it essential to the plaintiff’s right of recovery that the defendant should be chargeable with notice of her claim at the time he leased the premises of Mrs. Alden, nor that he paid the rent to his lessor in circumstances that should have put him upon enquiry, nor indeed that the plaintiff should have brought an action of ejectment to recover possession; but we base our decision upon the broad principle, clearly supported by the authorities, that a disseisee who has recovered possession of the premises from the disseisor, in whatever lawful mode, may when in possession maintain trespass for mesne profits against a tenant of the disseisor or any one else who has occupied under him, for the use and occupation of the premises, whether such occupant had any knowledge of the claim of the disseisee or had not.
It being found that the sum of $2,500 will compensate the plaintiff for the use and occupation of her land for each of the years 1874 and 1875, and $2,000 for the year 1876, the Superior Court is advised to render judgment in her favor for the aggregate of those sums, with interest upon each from the end of the term for which it is payable.
In this opinion the other judges concurred.